This week in my Consulta Migratoria® column I answer a reader's question about the J-1 visa.
Here I provide general answers to your questions. Each case is different and the answers vary depending on each person's immigration history. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.
I entered the U.S. on a J-1 visa and did not return to my country when I had to leave. In addition to my biographical information, the J-1 visa said that I am subject to section 212(e). What does that mean? I am currently married to a U.S. citizen and she wants to petition for me. Can I get permanent residency through my wife? - Oscar S.
The J-1 visa is a nonimmigrant visa for persons authorized to participate in exchange programs in the United States. This visa allows legal entry into the U.S. for various classes of persons, including doctors, professors and researchers, teachers, certain students, and au pairs.
Section 212(e) of the U.S. Immigration and Nationality Act requires certain individuals who have received a J-1 visa to live outside the U.S. for at least two years after having been in the country in J-1 status. Generally, this requirement is for persons who have participated in government-funded exchange programs, who received graduate medical education or training, and persons who possess special knowledge or skills.
Persons subject to section 212(e) generally cannot apply for various kinds of immigration benefits, including filing an application for adjustment of status to obtain permanent residence in the United States. This appears to be your case, so your wife would not be able to help you obtain permanent residence in the U.S. unless you obtain a waiver that allows you to avoid the section 212(e) penalty.
The U.S. Department of State grants a section 212(e) waiver when an alien can demonstrate one of the following requirements:
1. The government of the alien's home country grants a No Objection Statement that the immigrant will not return to his or her home country. This option does not apply to doctors who used the J-1 visa to enter the U.S. after January 9, 1977.
2. A U.S. federal agency requests that the alien remain within the U.S. to protect the interests of the federal agency.
3. The alien demonstrates that he or she would be persecuted on the basis of race, religion or political opinion upon return to his or her home country.
4. The alien demonstrates that his or her departure from the United States would cause exceptional hardship to his or her spouse or unmarried minor child who is a U.S. citizen or permanent resident.
5. A State Department of Public Health or its equivalent applies for a waiver for a foreign medical graduate who entered the U.S. on a J-1 visa to pursue graduate medical education or training.
Oscar, I recommend that you consult with an immigration attorney before you begin any immigration proceedings. The attorney will evaluate your immigration options, including the possibility of applying for a waiver if you are subject to section 212(e).
